National / Media | BIG IN JAPAN

China's detention system offers a few lessons for Japan

by Michael Hoffman

Contributing Writer

Shukan Gendai magazine last month sounded a warning: “Students, if you’re arrested in China it’s a very serious matter.”

China is popular with Japanese tourists. Some 2.68 million visited in 2017. It’s near — four hours by plane — and yet far: a different world. The spring travel season is here. Students celebrating their graduation — from school, from childhood — flock to China. They see the sights, dine, shop, have “experiences” and come home all the richer for having seen something of life beyond their immediate horizons.

Why should they be arrested?

They shouldn’t be and probably won’t be — but China’s political system is such that you don’t necessarily have to be guilty to fall foul of the law. It can happen in all innocence. Imagine, says Shukan Gendai, this scenario: You’re at some tourist spot, gaily snapping photos, when all of a sudden a police officer materializes out of nowhere and seizes you as a “spy.” It’s fantastic, unbelievable, a nightmare — or a joke? No, not that. Certainly not that.

“Once arrested,” the magazine says, “there are no guarantees for your physical safety. You have no way of adequately defending yourself. Your case will be tried in a local court, which could sentence you to prison and, once it does, the sentence is not easily annulled.”

If anything like this has ever happened to a casual foreign tourist, the magazine cites no cases. But recent news offers close analogies. Last week, China officially confirmed the arrests in December of two Canadians: one a businessman, the other a think tank fellow and former diplomat. Last month came the first official acknowledgment of the arrest in February 2018 of an employee of Japanese trading firm Itochu. The Canadians are alleged to have stolen state secrets. On the Itochu employee, the official comment was, “China has taken measures in accordance to law on the Japanese citizen suspected of violating Chinese laws.” What measures? What laws? None of your business, is the unspoken subtext.

Shukan Gendai mentions a Japanese woman arrested in China as a suspected spy in 2015. A closed court, it says, sentenced her to six years in prison. Japanese government requests for information were ignored. That’s all Shukan Gendai tells us, adding, “Such a thing would be unthinkable in a democratic country.”

Would it?

A world-famous name leaps to mind in rebuttal: Carlos Ghosn. Arrested in November on suspicion of financial misconduct, the former Nissan Motor Co. chairman spent over three months —- 108 days — in detention before his release on bail last week. A hallmark of democracy is the presumption of innocence pending a court’s guilty verdict. One hundred and eight days is a long time for an innocent person to languish in jail.

Ghosn’s high profile has given global notoriety to an aspect of Japan’s legal system known colloquially as “hostage justice.” A suspect can be detained for interrogation for up to 23 days — per charge. Prosecutors wanting to prolong the interrogation until the accused breaks down and confesses can simply add charges — endlessly. The accused has no right to have a lawyer present during interrogation.

“This is an approach to the rights of accused people,” wrote Brad Adams, Asia director of Human Rights Watch, in The Diplomat magazine in January, “that one would expect in a dictatorship, not in Japan.”

Hostage justice has its defenders. Exhibit A for them is Japan’s very low crime rate. Bending some human rights norms may seem an acceptable price to pay for it. Exhibit B is the argument that it prevents accused people from fleeing the country, destroying evidence or suborning witnesses. The Asahi Shimbun, probing the issue in an op-ed feature last month, spoke to former Tokyo High Court Judge Kunio Harada, who from the bench had essentially supported the system but now, working as a defense lawyer, has doubts. Referring to a client whose pretrial detention and interrogation on tax evasion charges have dragged on for two years and three months, he observes, “That’s more than half what his sentence would be if he’s found guilty.”

The system is rooted in postwar havoc, explains the monthly Bungei Shunju. Society was in ruins. Civil and military authority was comatose. The best the Allied Occupation felt it could do under the circumstances was to strengthen prosecutors. The system it created survives in the extraordinary powers Japanese prosecutors wield, in comparison to their counterparts elsewhere in the democratic world.

Former Diet member Muneo Suzuki well knows what happens when that system bears down on the individual. Arrested for suspected bribe-taking in September 2002, firmly maintaining his innocence, he spent 437 days in pre-trial detention. It could have been worse.

His cell was a four-mat room. “The apartment I lived in as a student was three mats,” he tells the Asahi Shimbun. “It didn’t seem so bad.”

A student, of course, can walk out of his apartment at his pleasure, which makes a big difference. But “what really hurt,” Suzuki says, “was the complete cutoff of information from the outside world. At first all contact with anyone other than my lawyer was forbidden. No newspapers, no magazines. I had no idea what was going on in the world. I was surprised at how painful that was.”

His duel with prosecutors became “a war of nerves” — he refusing to confess, they determined to make him.

It was a sweltering summer day. The heat in the cell was unbearable. “Listen, Mr. Suzuki,” he says the interrogator said to him. “If you keep denying the charges, you’ll be here three years, four years.”

“I wavered,” Suzuki says. “I thought, ‘All I have to do to end this suffering is confess.'”

Maybe he should have. He was convicted in the end. But that is another matter.

Confession would have ended Ghosn’s ordeal too — temporarily. He, too, refused. Whatever verdict the courts ultimately hand down, he is for now, in democratic theory, as innocent as an unaccused person. If mere accusation confers guilt, every one of us is at any moment vulnerable. Anyone at any time may appear to someone to be doing something wrong, or something meriting further investigation. Shukan Gendai’s warning about China is not without echoes in Japan.

Big in Japan is a weekly column that focuses on issues being discussed by domestic media organizations. Michael Hoffman’s new book, “Fuji, Sinai, Olympos,” is now on sale.

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